Where There’s a Will Do foreigners living in Portugal need “testamentos?”

Where There’s A Will ...

Do Foreigners Living in Portugal Need ‘Testamentos’?

By Rosário Vital

A “testamento” in Portugal is, just as in the USA, a document that specifies the distribution of a person’s estate after s/he dies. It can incorporate instructions regarding real estate (wills), personal property (testaments), as well as personal provisions that must be taken and respected in accordance with the law, by the executor and any court. As in the USA, and elsewhere, it also allows conditional and suspensive provisions. When made by Portuguese citizens, testamentos include imperative provisions regarding family and inheritance law that must be respected. Failure to do so can trigger a reduction of the testimony provisions (“Instituto de Redução Oficiosa”) or the automatic return of donated estate to the inheritance (“Instituto da Colação”). In a more globalized world, however, where an individual can establish multi-located relations connected with more than one legal system—i.e., having different citizenships, living in different places, retaining assets in different locations, making donations, signing wills in different places (and sometimes more than one will in the same country), marrying and having children in different countries or with other nationalities, and dying in a different country—private international law is crucial and called upon to regulate an individual’s ultimate will. A testamento is considered one of the noblest acts worthy of respect, as it embodies an individual’s last wishes and, therefore, deserves to be subject to a very careful and thorough legal consultation. According to Portuguese law, testamentos made by Americans or any other non-UE citizens cannot be treated the same way as applied to Portuguese citizens. While notaries in Portugal continue to provide a will’s legal format, they don’t always have the necessary knowledge, especially of private international law, to advise clients on their best interests in terms of substance. It is here that the intervention of a lawyer well versed in family law, inheritance law, and—particularly—private international law can make all the difference. Foreigners living in Portugal can choose either to make a will in Portugal that regulates their final wishes in Portugal and in their homeland with respect for both legal systems, or to have different wills in Portugal and another country to regulate the property relations they have in each of these countries (a situation that, in my opinion, and with few exceptions, is recommended in most cases). In accordance with private international law, succession relations are determined by the personal law of the grantor, if this law is to be considered “competent.” For this to happen, the content of a will must be carefully drawn so that: (1) it does not give preference to Portuguese law, which has provisions that historically are drawn to protect specific heirs; (2) it avoids any later discussion or grey areas; and (3) avoids provisions that could be subject to reduction because they could affect the legitimate share of legal heirs. In the case of multiple testamentos, it is also crucial that no conflicting dispositions exist that might revoke previous wills or jeopardize any future ones.

A dual citizen of the USA and Portugal, Rosário Vital is a Portuguese-accredited lawyer with over 20 years of experience— 15 in a multinational context. She is also the legal coordinator for www.relocatorportugal.com.